IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION),
KUMASI - A.D 2019
MOST REV. TITUS AWOTWI AND 3 OTHERS - (Plaintiffs)
JACQUELINE BOAKYE - (Defendant)
DATE: 24 TH JUNE, 2019
SUIT NO: OCC/58/2017
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
AKUA POKUAA KWARTENG FOR THE PLAINTIFFS
STEPHEN ALEWABA FOR THE DEFENDANT
The Plaintiffs in this case issued a Writ of Summons against the Defendant herein for the following reliefs:
(a) Recovery of the sum of Thirty-Five Thousand Ghana Cedis (GHS35,000.00) being rent arrears as at November, 2016.
(b) Interest on the said sum of Thirty-Five Thousand Ghana Cedis (GHS35,000.00) at the prevailing lending rate from November 2016 up till the date of full and final payment.
(c) Costs including legal fees.
On 11th May, 2017 final judgment in default of appearance was entered against the Defendant in the sum of GHC35, 000.00 and interest at the prevailing Commercial Bank lending rate from November, 2016 till date of final payment. Costs of GHC3, 000.00 was also awarded against the Defendant.
On 26th October, 2017 the default judgment was set aside upon an application by the Defendant. Consequently, the Defendant filed a statement of defence on 14th November, 2017 and counter claimed against the Plaintiffs as follows:
a. A declaration that all items (personal effects/belongings which were illegally and or unlawfully ceased by Plaintiffs/Representatives be released to her (Defendant) by Plaintiffs and/or their representatives.
b. General damages for keeping the said items (personal effects/belongings) by the Plaintiffs without any legitimate order.
One Nana Yaw Boakye testified on behalf of the plaintiffs. The crux of the plaintiffs' case is that the Defendant was a tenant of property with address, House No. 9, VRA Ward, Ridge, Kumasi which was owned by the late Edward Osei Boakye. The property is now owned by the 4th defendant while the 1st, 2nd and 3rd defendants are the executors of the WILL of the deceased and trustees of the 4th Plaintiff. The Property in question are 2 bungalows and the defendant rented both for herself and her brother. According to the plaintiff’s representative, sometime in 2008 after the death of Edward Osei Boakye, the 4th Plaintiff took over the management of the property. It was then that the Defendant wrote to the 4th Plaintiff that she paid GHC13, 200.00 to the deceased and it was agreed that the amount should cover rent between September 2008 and December, 2010. It is their case that although there was no documentary evidence in respect of the said amount they agreed to the arrangement. The plaintiffs also claim that in 2010, they agreed with the Defendant on the amount of GHC250 as the monthly rent payable per bungalow. It is their case that the defendant has defaulted in the payment of rent from November, 2010 to November, 2016. They are therefore claiming from the defendant the accumulated amount of GHC35,000.00 plus interest on the said amount.
The Defendant’s Case
The Defendant also avers that she rented two bungalows from the deceased, Edward Osei Boakye sometime in 2001 and that after his death, no one contacted her to pay rent or to inform her that the rent has been increased. According to the Defendant, she paid the sum of GHS 13,200 to the late Edward Osei Boakye during his lifetime and the initial agreement was to purchase a piece of land in front of the property which she occupied. Since the sale of the land could not materialize, she agreed with the deceased before his demise that the said money be treated as rent.
It is the case of the Defendant that the rent she paid for the two bungalows was GHS100 per bungalow and that she did not reach any agreement with the 4th Plaintiff or any other person that the new rent payable per bungalow was GHS250.
The Defendant further avers that sometime in October, 2016 she moved part of her belongings from the bungalow she occupied and handed over the keys to the bungalow to the representative of the Plaintiffs. After she moved out, the 4th Plaintiff’s representative made a report to the Police alleging that she owed the Plaintiffs but the Police found no merits in his case. Following the unsuccessful attempt by the Plaintiff’s representative to use the Police, he made a report to the Rent Control but could not prove his case there as well and therefore discontinued the matter.
The Defendant alleges that a list of items (as shown in her counterclaim) remained in the bungalow and though she has made attempts to retrieve those items, the representative of the Plaintiffs has refused to grant her access to the bungalow. The Defendant seeks an order from this Court for the release of her items in the bungalow and general damages.
Issues set down for trial
As required under Order 58 rule 4 of the High Court (Civil Procedure) Rules, 2004, CI 47, there was an attempt at settlement but the parties were unable to reach an agreement. The following issues were therefore set down for trial:
1. Whether or not the agreed rent for the occupation of the two bungalows was GHS250.00 per bungalow.
2. Whether or not the Defendant owes the Plaintiff the sum of GHS35, 000 for rent from December 2010 to November 2016.
3. Whether or not the Plaintiffs have prevented the Defendant from taking her belongings from the bungalows.
4. Whether or not the Plaintiffs are entitled to their claim.
5. Whether or not the Defendant is entitled to her counterclaim.
The Burden of Proof in Civil Suits Generally
As in all civil suits, the legal burden of proof is placed on the party who asserts the existence of a fact in issue or any relevant fact. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version in relation to the rival accounts to be more probable than its non-existence.
This basic principle of proof in civil suits, is expounded in Zambrama v Segbedzie (1991) 2 GLR 221 and the same has been applied in numerous cases including Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307; Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others  SCGLR 728.
In Ackah v. Pergah Transport Limited and Others (supra), Adinyira, JSC succinctly summed up the law, at page 736:
“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than it’s non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).”
There is, indeed, a clear distinction between the legal burden of proof and evidential burden of proof. Whilst the legal burden of proof is mostly borne by the Plaintiff or whoever makes an assertion, evidential burden exists to produce evidence in support of an assertion or exists in the form of tactical onus to contradict or weaken the evidence that has been led by an adversary.
Thus, at the trial the Plaintiffs bore the burden of producing evidence and the burden of persuasion on the issues set down for trial. The defendant also bore the burden of proof on her counter claim. The Defendant was also at liberty to introduce evidence to contradict the assertions of the Plaintiffs.
Tackling the Issues
I shall now proceed to resolve the issues which were set down for trial. In the analysis, the court shall also consider the written address of counsel for the Plaintiffs. In fact, at the close of the case both lawyers were ordered to file their written submissions. Counsel for the Plaintiffs filed her written address but counsel for the Defendant failed to do so. This judgment is, therefore, delivered without the input (in terms of written address) of counsel for the Defendant.
First, issues 1, 2 and 4 shall be tackled together since they are all related and they are as follows:
1. Whether or not the agreed rent for the occupation of the two bungalows was GHS250 per bungalow?
2. Whether or not the Defendant owes the Plaintiffs the sum of GHS 35,000 for rent from December 2010 to November 2016?
4. Whether or not the Plaintiffs are entitled to their claim?
From the pleadings of the parties and throughout the trial, whilst the Plaintiff stated that after the death of Edward Osei Boakye, the agreed rent was at GHS250 per bungalow, the Defendant insisted that the rent was GHS100 per bungalow. The Plaintiffs and Defendants were unable to produce documentary evidence to support their claims on the rent per bungalow. So what we have are bare assertions on oath by both parties. In circumstances like this, it is trite learning that the Court’s duty is to assess the credibility of the evidence adduced by each party and decide which party’s evidence is more probable. See In re Yendi Skin Affairs; Yakubu II v Abdulai (No. 2) [1984-86] 2GLR 239, SC.
Section 80 of the Evidence Act, 1975 (NRCD 323) provides some useful guidelines which may be relevant for determining the credibility of a witness. The evidence of a witness is credible when, for instance, it passes all the litmus tests in Section 80(2) of NRCD 323. If it fails any of those tests, it ceases to have any probative value for any purpose whatsoever. SEE ZANYO v FOFIE (1992) GLR 475.
Section 80 of the Evidence Act, 1975 (NRCD 323) provides as follows:
(1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial.
(2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: —
(a) the demeanor of the witness;
(b) the substance of the testimony;
(c) the existence or non-existence of any fact testified to by the witness;
(d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies;
(e)the existence or non-existence of bias, interest or other motive;
(f) the character of the witness as to traits of honesty or truthfulness or their opposites;
(g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial;
(h) the statement of the witness admitting untruthfulness or asserting truthfulness.
Under cross examination, the Defendant stated that she paid GHS13,200 to the deceased in the year 2005. This is what ensued:
Q: So you mean to tell the court that from 2001 when you moved into possession of the bungalows he could not finalize the tenancy agreement before he passed?
A: No. Originally I had given some monies to the Landlord Edward Boakye for a different purpose but when changes came in he decided to use that as my rent. It was for this reason that he prepared the draft tenancy before he died.
Q: So when did you pay this money to the late Osei Boakye?
Counsel for the plaintiffs argues that assuming the GHS13,200 took care of the rent starting from the year 2006 (at the rate of GHS100 as claimed by the Defendant), it means the Defendant stayed in the property for about 10 more years after paying the GHS13,200. The rent for the two bungalows will amount to GHS26, 000 i.e. from January 2006 to October 2016.
If the sum of GHS13, 200 is deducted from GHS26, 000, the rent arrears comes up to GHS12,800. In spite of this, the Defendant insists that at the time she vacated the property in 2016 she owed an amount of GHS3,600.(See Paragraph 13 of Defendant’s witness statement).
Again, in Exhibit C, the Rent Control Complaint Form which contains a summary of the Defendant’s claim, she states that she owes the 4th Plaintiff rent for a period of two (2) years. This two year arrears translates into the sum of GHS4, 800 and not GHS3, 600.
Also, the Defendant maintained in her pleadings and witness statement that the representative of the 4th Plaintiff, reported her to Rent Control after he was unsuccessful at the Police Station. Paragraph 15 of the Defendant’s witness statement reads:
“The said Emmanuel Boakye being dissatisfied with the advice and action of the police later sent me to the office of the Rent Control to assist him collect his money from me. In fact, at the Rent Control’s office, he could not prove his case and as a result, the matter was discontinued.”
Under cross examination, after the Defendant had obviously seen the Plaintiff’s Exhibit C and D which shows that she was rather the complainant at the Rent Control, her story changed. This is what transpired at page 23 of the record of proceedings:
Q: Subsequently, you lodged a complaint at the Rent Control against the 4th Plaintiff. Is that not so?
A: That is correct
Q: And after your said complaint, you failed to turn up at the Rent Control?
A: That is not correct. I pursued the matter.
It is palpably clear that the defendant’s evidence is characterized with inconsistencies which border on falsehoods. These inconsistencies make her evidence quite improbable and go against her credibility as a witness; and I so find, on the authority of Section 80 of NRCD 323.
The Plaintiffs’ representative on the other hand was consistent throughout the trial on the claims made by the Plaintiffs. The Plaintiffs’ representative, at paragraph 4 of his witness statement described the Property as follows:
“The property comprises of two bungalows made up of two bedrooms, with a hall, kitchen and a storeroom in each.”
At paragraph 27 of his witness statement, the Plaintiff’s representative stated:
“The Property is located near the MTN office at Ridge in Kumasi and that area is considered a 1st Class residential area and GHS250 which is the correct figure the parties agreed on was a reflection of the rent charged in that vicinity at the time the parties agreed on that rate.”
In evaluating the evidence as a whole, I find the version of the Plaintiffs to be more probable.
Counsel for the Plaintiffs has invited the Court to take judicial notice of the fact that considering the location of the Property (i.e. Ridge Kumasi), which is a 1st Class residential area, the rate of GHS250 for a property of this nature, is more realistic than the GHS100.
Judicial notice normally covers matters of common notoriety and things which happen in the course of nature. NRCD 323, s9(2) provides that judicial notice can only be taken of facts which are not subject to reasonable dispute because they are either: “(a) so generally known within the territorial jurisdiction of the court; or (b) so capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”
I am inclined to agree with Counsel that considering the location of the Property (a two-bedroom bungalow with a hall, kitchen, and a storeroom) a rent of GHS250 in relation to the properties in question is more realistic. Thus, the rent payable by the defendant for each bungalow between the December 2010 and 1st November, 2016 amounts to GHC 17,750.00. The rent in respect of the two bungalows comes up to GHC 35,500.00. Thus, the amount of GHC 35,000.00 being claimed by the Plaintiff can be said to be reasonable. The result is that the Plaintiffs are entitled to a recovery of the sum of Thirty-Five Thousand Ghana Cedis (GHC 35,000.00) from the Defendant.
Resolving Issues 3 and 5
3. Whether or not the Plaintiffs have prevented the Defendant from taking her belongings from the bungalow?
5. Whether or not the Defendant is entitled to her counterclaim?
The Defendant claims that after she vacated the bungalow, she returned the key to the Plaintiff’s representative and on 19th October, 2016, she requested the Plaintiff’s representative to give her the key so she retrieves the remainder of her belongings but this request was not granted.
If the Plaintiff vacated the Property in October 2016 with the intention of residing elsewhere and not returning to occupy same, what prevented her from sending all her belongings to her new residence before handing over the keys to the 4th Plaintiff’s representative? It is quite strange that the Defendant who supposedly had such valuables, including a wall drop of jewelries and watches would hand over the keys to the property to the Plaintiff’s representative without making the latter aware that she has some valuables in the property. The normal practice is that tenants always cart away all their belongings before handing over keys to properties they occupy to a Landlord or his representative. A reasonable man would find the position of the Defendant on this issue very absurd and I therefore cannot agree with the Defendant.
If the Defendant truly had such valuable items as listed in the Counterclaim in the bungalow, she would have seriously pursued the matter at the Rent Control, as it is evident from Exhibit C that she was the complainant. The explanation given by the Defendant as to why the complaint was abandoned is untenable. This is because, the present action came to the attention of the Defendant in October 2017, even though the action was commenced by the Plaintiffs in March 2017. So between the periods from March to October 2017, what prevented the Defendant from taking the necessary action to retrieve her belongings from the bungalow?
In my considered opinion, the Defendant could not have reasonably handed over the keys to the Plaintiff’s representative knowing very well that she had left valuables in the bungalow. I find the defendant’s version improbable. The Plaintiffs cannot be held responsible for any loss she might have supposedly suffered. The counterclaim is therefore dismissed.
Accordingly, I enter judgment in favour of the plaintiffs against the defendant in the amount of GHC 35,000.00 plus interest at the commercial bank rate from November, 2016 till date of final payment.
Costs of GH¢5,000.00 is awarded against the Defendant.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH COURT